Jessica Yaniv, the transgendered woman who filed multiple human rights complaints in British Columbia after salon workers refused to provide waxing service.Darryl Dyck for National Post

Howard Levitt: Court would be gatekeeper for frivolous complaints that are making Canada a human rights laughingstock

The case of Jessica Yaniv, the transgendered woman who filed multiple human rights complaints in British Columbia after salon workers refused to provide waxing service for her untransitioned genitalia, proves that human rights cases should be dealt with by courts rather than tribunals.

Curious about the fact that Yaniv’s applications, which were largely filed against immigrant women who had cultural or religious objections to performing the service, were not dismissed peremptorily as frivolous and vexatious, I took some time to look into the members of the B.C. and Ontario tribunals.

Based on LinkedIn profiles, professional bios, news articles, alumni newsletters and government websites, it appears that of the 13 decision makers on the B.C. tribunal, seven come from predominantly social advocacy backgrounds. That is, they mostly listed experience working for poverty law clinics, non-profits, were human rights professors, had worked on social justice tribunals, or for labour law firms that tend to represent unions. Five listed backgrounds in relatively neutral roles and organizations, such as government, in-house counsel for a major company or international, personal injury or criminal law. One came from a corporate background.

The cause of human rights is at risk of becoming trivialized by these complaints and the resources they utilize

In Ontario, 10 of the 19 current chairs and vice-chairs come from social advocacy backgrounds, seven from neutral backgrounds and two from corporate backgrounds. Fourteen of those were appointed by the Liberal governments of Dalton McGuinty and Kathleen Wynne; nine of them were from social advocacy backgrounds, four from neutral backgrounds and one from a corporate background. The Ford government has appointed five, three of whom were from neutral backgrounds, one from a social advocacy background and one from a corporate background.

It is not surprising that individuals who had pursued social justice as a career would seek a position on a tribunal dedicated to adjudicating human rights complaints.

It is also not surprising that however objective they might wish to be, their own world view and biases likely seep into their decisions.

The problem is that identity politics, which supports an often fabricated victimhood, devalues genuine societal victims. By using resources on cases such as Yaniv’s, human rights tribunals have less left for those whom they were set up to assist. Worse, the cause of human rights is at risk of becoming trivialized by these complaints and the resources they utilize.

One such complaint recently came to light in Alberta. James Cyryniowski responded to an online ad from a father seeking a babysitter for his 5- and 8-year-old sons. In his conversations with the father, he indicated he was a 28-year-old man. Plans changed, and the man never followed up to indicate he didn’t need a sitter. Cyryniowski proceeded to file a human rights complaint, alleging that he was discriminated against based on his age and gender.

Cyryniowski filed a similar complaint against Christina Stadler, who posted an online ad for a babysitter for her 5-year-old son, specifying a preference for an older lady with experience. Although that complaint was ultimately dismissed after expensive appeals, the initial human rights investigator recommended that Stadler make a payment to Cyryniowski based on her alleged discrimination.

One might think that a parent’s preference for who looks after their young and vulnerable children should prevail. But the handling of the Cyryniowski and Yaniv cases, both of which made international news, is making Canada a human rights laughingstock.

Some individuals, outraged by the abuses, have started filing complaints to make a parody of the entire system.

A complaint against A&W, claimed that its “Papa and Grandpa” burgers caused the applicant to feel degraded, attacked and violated

For example, a complaint against A&W, claimed that its “Papa and Grandpa” burgers caused the applicant to feel degraded, attacked and violated and sought $50,000 and an order that A&W develop a more inclusive menu. The applicant used the name Dawn Ironbox, a character in the Family Guy TV series.

A similar complaint against Walmart Canada argued that Walmart’s decorative gift cards were described as “men only” and “manly products.” Both complaints were dismissed by the tribunal since the applicants made clear that their purpose was to ridicule the process.

The cost of dealing with frivolous complaints is a genuine problem. There are no financial consequences for filing a facetious or foolish complaint. In fact, the Human Rights Legal Support Centre in Ontario provides provides free legal representation for selected complainants, even if they wouldn’t qualify for legal aid. There are no free lawyers for even demonstrably impecunious employers.

And the reality is that legal fees for an average human rights tribunal hearing generally exceed the average award. This makes submitting an application impractical, even for meritorious complainants.

Requiring complaints to proceed before a judge will weed out some of the frivolous and ensure there are financial consequences for those that do manage to appear before a court. It will also lead, in my view, to much better decision making.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces.The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.

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